People v. Salinas

• Decision Date: 18 June 2008
• Docket Number: No. 1-05-2791.,1-05-2791.
• Citation: 891 N.E.2d 884,383 Ill.App.3d 481
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Pedro SALINAS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

891 N.E.2d 884

383 Ill.App.3d 481

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Pedro SALINAS, Defendant-Appellant.

No. 1-05-2791.

Appellate Court of Illinois, First District.

June 18, 2008.

Rehearing Denied July 16, 2008.

Patricia Unsinn, State Appellate Defender (Jonathan Krieger, Assistant Appellate Defender), Chicago, IL, for Appellant.

Richard A. Devine, State's Attorney of Cook County (James E. Fitzgerald, Michelle Katz, Kingsley S. Sawyers, of counsel), Chicago, IL, for Appellee.

Justice GREIMAN delivered the opinion of the court:

Following a bench trial, defendant Pedro Salinas was convicted of unlawful possession of a controlled substance (720 ILCS 570/402(a)(2)(D) (West 2004)) and sentenced to 10 years' imprisonment. On appeal, defendant seeks reversal of his conviction, asserting that the trial court erred in denying his pretrial motion to quash arrest and suppress evidence because: (1) the traffic stop that resulted in the seizure of the controlled substance violated his constitutional right to be free from unreasonable searches and seizures; and (2) the trial court improperly relied on evidence outside the record in delivering its ruling. We affirm.

Following a narcotics surveillance operation, defendant was charged with possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(D) (West 2004)) when police officers recovered 5,118 grams of cocaine from defendant's vehicle on April 1, 2004. The surveillance operation also resulted in the arrests of codefendants Carlos Ayala and Tomas Cantuo, who were also charged with narcotics offenses.

Prior to trial, defendant, through counsel, filed a motion to suppress, seeking to suppress the cocaine the police recovered from his vehicle, contending that the search and seizure violated his fourth and fourteenth amendment rights to be free from unreasonable searches and seizures. In his motion, defendant argued that at the time police stopped his car for an improper lane change, "the police did not possess probable cause to arrest, or a reasonable suspicion to support a `Terry' stop." Nonetheless, defendant contended that police ordered him out of the vehicle, handcuffed him, and "performed a full search of the vehicle," during which they recovered a box containing cocaine. Defendants argued that the search and seizure was illegal and, accordingly, sought suppression of "all fruits derived illegally from the search and seizure." Codefendants Ayala and Cantuo also filed motions to suppress, and the trial court conducted a hearing on all three motions.

At the hearing, Officer Andrew Carvajal testified that on April 1, 2004, he was a member of the Chicago police department's long-term narcotics investigation team when he met with, and received information from, a paid confidential informant. Officer Carvajal classified the informant as "reliable" and indicated that he had received information from this informant on approximately 30 to 40 occasions over the past two years, and that the informant's information had led to number of arrests as well as the seizure of narcotics. He could only recall three occasions where the informant's tip did not prove to be accurate. On this occasion, the informant told Officer Carvajal that "he had information that a shipment of cocaine had arrived" at a residence located at 4405 South Trumbull "either the night before or * * * two nights before." The informant further informed Carvajal that a man named "Carlos" resided at that address and described him as a short Hispanic male with a slim build who was in his late thirties. The informant did not identify defendant or provide any specific information pertaining to him. Moreover, the informant did not provide any information as to how the narcotics were packaged. At the conclusion of the conversation with his confidential informant, Officer Carvajal conducted a meeting and relayed the information provided by the informant to the other members of his team. After hearing the substance of the informant's tip, the team decided to conduct a surveillance operation at 4405 South Trumbull. Accordingly, Officer Carvajal and approximately 10 other officers commenced surveillance at the South Trumbull address at approximately 3:30 p.m.

In explaining his role in the surveillance operation, Officer Carvajal testified that he wore plain clothes and sat alone in an unmarked car parked in an alley near the residence. He had radio contact with the other members of his team. At some point, Officer Robert Betermann, who was engaged in surveillance in the front of the residence, informed the other officers over the radio that defendant was in the area. Specifically, Officer Betermann relayed over the radio that defendant and a female approached 4405 South Trumbull in a vehicle, that defendant conversed with a man later identified as codefendant Carlos Ayala, that Ayala then entered the house, retrieved a bag, which he handed to defendant, and that defendant and the woman accompanying him returned to their vehicle and drove away. Officer Carvajal never saw defendant from his surveillance position in the rear of the South Trumbull residence. He explained that defendant was not arrested after receiving the bag because no one had seen defendant commit a crime. Instead, mobile surveillance commenced on defendant's vehicle.

Officer Betermann confirmed that he assumed a surveillance position at the front of the South Trumbull residence on April 1, 2004, at approximately 3:30 p.m. He further confirmed that at approximately 5:30 p.m., he saw defendant arrive at 4405 South Trumbull in a Jeep vehicle that contained a female occupant, who was later identified as Candelaria Vargas, and converse with Carlos Ayala on the front steps of the residence. From his surveillance position, he was unable to hear the contents of the five-minute conversation. At the conclusion of the conversation, Officer Betermann observed Ayala enter the residence and emerge shortly thereafter with a large plastic bag containing a square-shaped box that was approximately 15 inches high and 6 inches wide. Although he was unable to see the contents of the box, Officer Betermann saw Ayala hand the box to defendant, who then placed it in the Jeep and proceeded to drive northbound on Trumbull Avenue. Several members of the surveillance team then commenced mobile surveillance on defendant's vehicle.

Officer Fernando Velez was part of the four-person team that engaged in mobile surveillance on defendant's car. Mobile surveillance commenced on South Trumbull Avenue and concluded approximately one hour later at 4000 North on the Kennedy Expressway. Officer Velez explained he witnessed defendant make two lane violations near Diversey Avenue. Specifically, he observed defendant change lanes without using his turn indicator. However, because Officer Velez was driving an unmarked police vehicle that was not equipped with flashing lights or emergency equipment, he was unable to pull over defendant's vehicle. Accordingly, he obtained the assistance of several officers from the 17th District, who curbed defendant's vehicle.

At the time of the traffic stop, Officer Velez conceded that he possessed neither a search warrant nor an arrest warrant. Nevertheless, after defendant's vehicle was stopped, Officer Velez walked to defendant's car, identified himself as a police officer, revealed that he was part of a narcotics investigation, and that defendant had been seen accepting a box from the South Trumbull residence that was under surveillance. Defendant immediately acknowledged that he had received a box containing narcotics at the residence. Defendant further stated that Candelaria Vargas, his passenger, was not involved in the transaction. Following defendant's confession, Officer Velez recovered a Mr. Coffee box containing 5,118 grams of shrink-wrapped cocaine, which was sitting in plain view in the backseat of the vehicle. After he recovered the narcotics, Officer Velez placed defendant into custody and used his radio to inform the remaining members of the surveillance team that narcotics had been recovered from defendant's car. Officer Velez acknowledged that defendant did not receive a ticket for the traffic violations and that he did not mention the lane violations in the report that he prepared of defendant's arrest.

Candelaria Vargas confirmed that she was a passenger in defendant's car on April 1, 2004, when police stopped the vehicle at approximately 6:30 p.m. She testified that defendant was a friend of her father's and denied that he was her boyfriend. Vargas acknowledged that she and defendant had visited 4405 South Trumbull earlier in the day and that defendant conversed with Carlos Ayala; however, she did not see Ayala hand defendant a package. After leaving the South Trumbull residence, Vargas explained that defendant "was driving fine." She did not observe defendant make any lane changes without using his turn indicator; rather, "[i]f he did move, he did put the signal on." After police stopped defendant's vehicle, two officers approached the car, and one of the officers immediately removed defendant from the car and "quickly" placed him in handcuffs without engaging in any prior conversation. Vargas then exited the car herself and was also handcuffed and led away from the vehicle. She then saw an officer remove a bag from the rear of the car. Vargas denied that any conversation had taken place prior to the removal of the bag because "[t]here wasn't any time."

While Officer Velez commenced mobile surveillance on defendant's car, Officers Carvajal and Betermann remained in their surveillance positions near the South Trumbull residence. At approximately the same time that Officer Velez stopped defendant's vehicle after defendant had made two illegal lane changes, Officer Betermann observed codefendant Cantuo arrive at the South Trumbull residence. Officer Betermann saw Ayala hand Cantuo...